In December, the General Assembly enacted the “ban the box” law, House Bill (H.B.) 56. The bill creates R.C. 9.73, which prohibits public employers in Ohio from including any questions about a person’s criminal background on employment applications. School districts should take steps now to ensure compliance with the law when it becomes effective on March 23, 2016.
While employers will no longer be able to ask about a candidate’s criminal history on employment applications, employers can include a statement on the application informing an applicant of state or federal law that disqualifies an individual with a particular criminal history from employment in certain positions.
School districts are still required to conduct initial employment background checks prior to employment under R.C. 3319.39. The legislation did not change any of the statutory bars from licensure (also called “unemployable offenses”) for teachers, bus drivers, or those individuals working with children in schools under a pupil activity permit, or the rules around rehabilitation of those offenses. (It is worth noting, however, that the Certificate for Qualification of Employment (CQE) may remove the automatic bar for some candidates. You can read more about CQEs here.) OSBA’s criminal records check fact sheet contains more information about background check requirements.
Prior to March 23, 2016, school districts should review their applications for employment to ensure they comply with R.C. 9.73. School districts that contract with vendors to create and manage online employment applications for the district will need to reach out to their vendors to confirm the vendors are aware of H.B. 56 and will bring their systems into compliance by March 23.
While working to ensure your district is going to be compliant with R.C. 9.73 when it becomes effective, you might also consider asking your district counsel to conduct a general compliance review to determine how your district’s hiring practices align with the following:
- 2012 guidance from the U.S. Equal Employment Opportunity Commission regarding the consideration of arrest and conviction records in employment decisions under title VII of the Civil Rights Act,
- the requirements of the Fair Credit Reporting Act, and
- recent court decisions like EEOC v. Abercrombie & Fitch (holding that an employer may improperly make an employment decision based on the need for accommodation under Title VII, even if the accommodation was not requested by a candidate).
Note that this list is not an exhaustive list of areas for review. The law around some hiring practices, such as “googling” a candidate or checking an applicant’s social media in the hiring process, is continually evolving. It is of critical importance to work with counsel to ensure your hiring practices remain compliant with evolving case law and recent statutory developments.